FT MEADE HEARINGS 

GenCol1 

BEFORE THE 



V 


SIXTY-FIFTH CONGRESS 

FIRST SESSION 

ON 

S. 2717 

A BILL PRESCRIBING RULES FOR THE GOVERNMENT AND 
REGULATION OF THE LAND AND NAVAL FORCES 
DURING THE PERIOD OF THE EXIST¬ 
ING WAR WITH GERMANY 


Printed for the use of the Committee on Military Affairs 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1917 

* l 









I 




COMMITTEE ON MILITARY AFFAIRS. 




GEO. E. CHAMBERLAIN, of Oregon. Chairman 


GILBERT M. HITCHCOCK, of Nebraska. 
DUNCAN U. FLETCHER, of Florida. 
HENRY L. MYERS, of Montana. 
CHARLES S. THOMAS, of Colorado. 
MORRIS SHEPPARD, of Texas. 

J. C. W. BECKHAM, of Kentucky. 
WILLIAM F. KIRBY, of Arkansas. 
JAMES A. REED, of Missouri. 
KENNETH D. McKELLAR, of Tennessee. 


FRANCIS E. WARREN, of Wyoming. 

JAMES II. BRADY, of Idaho. 

JOHN W. WEEKS, of Massachusetts. 

JAMES W. WADSWORTH, Jr., of New York. 
HOWARD SUTHERLAND, of West Virginia. 
HARRY S. NEW, of Indiana. 

JOSEPH S. FRELINGIIUYSEN, of New Jersey. 


Caraly B. Shelton, Clerk. 

H. Grant, Assistant Clerk. 

Edward J. Hickey, Assistant Clerk. 


D. of D. 

NOV 1 1917 




GOVERNMENT AND REGULATION OF MILITARY FORCES DUR¬ 
ING WAR WITH GERMANY. 


FRIDAY, AUGUST 31, 1917. 

United States Senate, 

The Committee on Military Affairs, 

W ashing ton, D. C. 

The committee met, pursuant to call, at 11 o’clock a. m., in com¬ 
mittee room, Capitol, Senator Geo. E. Chamberlan presiding. 

Present: Senators Chamberlain (chairman), Hitchcock, Fletcher, 
Beckham, Kirby, McKellar, Brady, Weeks, Wadsworth, New, and 
Frelinghuysen. 

The Chairman. The committee has under consideration S. 2717, 
a bill introduced by Senator Hardwick, who will address the com¬ 
mittee on the bill. 

Senator, we will be glad to hear you. 

STATEMENT OF HON. THOMAS W. HARDWICK, SENATOR FROM 

GEORGIA. 

Senator Hardwick. Mr. Chairman and gentlemen, the bill that I 
have asked the committee to be heard on is known as Senate bill 2717, 
introduced by myself on the 2d day of August, 1917, and referred to 
this committee. The bill, without reading its formal beginning and 
heading, is as follows [reading]: 

That for and during the period of the existing war with the Imperial Govern¬ 
ment of Germany the following rules and regulations for the government and 
regulation of the land and naval forces of the United States shall be followed 
and observed: 

No person heretofore or hereafter drafted into the military service of the 
United States, pursuant to any law thereof, shall be ordered or required by the 
Commander in Chief of the Army and Navy, or by any other military or naval 
authority, to render military service over the seas, except in the Territories or 
insular possession of the United States, unless and until such person shall have 
first voluntarily consented to such foreign service. 

Mr. Chairman, the subject covered by that bill and the object 
sought by it is one upon which I feel so strongly that I shall be forced 
to measure, and measure very carefully, the words I shall use in its 
advocacy. 

First of all, let me say—although I deem it wholly unnecessary, so 
far as the members of this committee or any Member in the Senate is 
concerned, to make the statement—that no one who is a Member of 
either House of Congress is more earnestly anxious to prosecute, and 
to prosecute adequately, the war in which this country is engaged 
than myself. While I deeply regretted the necessity for declaring 

3 



4 GOVERNMENT AND REGULATION OF MILITARY FORCES. 

war at the time we did declare it, in my judgment no other course was 
possible if we were to retain our own self-respect as a nation or to 
command the respect of other nations, simply and solely because 
Germany had fired upon our flag and had used her navy to murder 
American citizens who were peaceably and inoffensively engaged in 
commerce on the high seas, and who were in no way connected with 
the contest between Germany and her enemies. 

At the time I voted for the resolution to declare war, I did so with¬ 
out the slightest hesitation, although with deep and real regret. I 
believed then and believe now that if the foreign affairs of this coun¬ 
try had been properly managed and its neutral rights had been im¬ 
partially asserted against all peoples alike there would not have been 
the slightest danger of this country being dragged into this war, nor 
any necessity for it. But the “ water that has passed turns no wheel,” 
and at the time we voted, when this session began, we were “up 
against it.” We were in that situation well described by President 
Wilson in one of his books, where the President of the country had so 
managed its diplomatic affairs that Congress could do no more and 
no less than to occupy the position he had put the country in. 

I have never thought that we were compelled, in order to prosecute 
this war adequately, to violate all of the traditional principles and 
to disregard the individual liberties of the American citizen; on the 
contrary I have always felt that the American citizen was a great 
deal more apt to wage this war successfully and with some spirit if 
he was treated as a freeman instead of as a serf, as a citizen and not 
as a subject- 

(At this point the committee took a recess for the purpose of an¬ 
swering a call of the Senate, and thereupon resumed as follows:) 

The Chairman. You may proceed, Senator Hardwick. 

Senator Hardwick. Mr. Chairman, when interrupted I was pro¬ 
ceeding to say that I had always believed that the American people 
would fight this war more adequately and wage it more vigorously 
and successfully if the individual American citizen were treated as 
a freeman and not as a serf, in the preparations that were necessary 
to be made for its prosecution. 

My OAvn opinion was that our own quarrel required a vindication 
of our rights on the high seas, the vigorous use of the American 
Navy, and of a moderate amount of land forces such as would have 
been covered by the strength of the Regular Army and such of the 
militia as were wdlling to go—and I think that would have been prac¬ 
tically all of them—and the number of volunteers that I believe this 
country would have readily furnished, would have been ample. Of 
course, if the proposal was that we were to engage in this war to the 
same extent that its European participants engaged in it. then the 
situation was radically different. But I did not entertain that view, 
or believe we ought to do so, because, while my own position is that 
I would be willing to spend every cent of money in this countrv and 
every drop of blood in America to vindicate American rights and to 
vindicate American honor, I am utterly unwilling to spend a single 
cent of American money or a single drop of American blood to 
change the boundaries of a single European nation or to change the 
form of government of any country on this earth, in Europe or else¬ 
where. 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


5 


This democratization of the world is nonsense; it does not appeal 
to me. I think we are in far greater danger of losing our democracy 
at home in the chase of any such moonshine as that; and, for one, I 
believe in the policy of Washington and Jefferson, anrl Jackson and 
Monroe and Madison on this question, and not that of Woodrow Wil¬ 
son. So that, entertaining these views, it was of course impossible 
for me to vote for the draft law—the “conscript law,” if you like 
that term better. 

In the first place, I seriously doubted then, as I doubt now, its 
constitutionality; the power of Congress to enact it. The law rests, 
I assume, Mr. Chairman, on that clause of our Constitution which 
clothes Congress with the power to v^ise and support armies—of 
course, regular armies—and not on the militia sections of the Con¬ 
stitution. If it rests on the militia sections of the Constitution, then, 
according to the express provisions of those sections we would be 
utterly unable to use this drafted army except for the three purposes 
specified in them, namely, to execute the laws of the Union, to sup¬ 
press insurrections, and to repel invasions. 

The Chairman. May I interrupt you right there? 

Senator Hardwick. Certainly; I would be glad to have you do so. 

Hie Chairman. If the power was limited as -you now suggest,, 
would it not have made it impossible for Congress to raise an army, 
if men saw fit to go into the National Guard; in other words, men 
could have avoided the national service by joining the National 
Guards of the several States? 

Senator Hardwick. Undoubtedly; and such was the intention of 
the framers of the Constitution. They recognized but two military 
forces of the United States: First, the Regular Army, which was 
raised by the use of money and nothing else, because that is the only 
instrument referred to in the language giving the power. 

The Chairman. The Senator recognizes that an eminent judge 
in his own State has taken an opposite view very recently. The 
courts of Texas, Virginia, Alabama. Georgia, and some others took 
a diametrically opposite view during the Civil War. 

Senator Hardwick. Georgia did not. 

The Chairman. I think it did. 

Senator Hardwick. No ; I do not think it did. I am familiar with 
the decisions. The court of Texas did, and maybe those of some of 
the other Southern States, but the Senator must remember that in 
every one of those cases conscription was for service on the soil of 
this country and not for service over the seas and outside of the 
realm. 

The Senator from Oregon suggests that if my view is sound Con¬ 
gress would have had no power to raise a Regular Army—by com¬ 
pulsion, you mean ? 

The Chairman. Or in any other way. 

Senator Hardwick. Or in any other way except by hiring them, 
because men might enlist in the National Guard. So they might; 
and it was not the intention of the framers of the Constitution, nor 
is it the idea on which this Government was formed and founded, in 
my judgment, that Congress should have had any such power as that. 
The Regular Army to be raised bv voluntary enlistment—by the 


6 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


use of money; and that it should not be paid for a period of longer 
than two years. 

Senator Kirby. You think, then, it was the intention that we 
should confine our military activities to this continent ? 

Senator Hardwick. Undoubtedly. This Government was not 
made strong for the purpose of waging offensive warfare outside of 
this country—foreign warfare. Its powers were not constructed 
with that view and end; and it has remained for later-day states¬ 
manship to develop that idea. Yo one of our fathers entertained 
it or professed it, or dared even suggest it. 

When the Constitution clothed Congress with the power to raise 
and support armies, it provided that it might do so by the use of 
money, because immediately in that connection the expression is 
used, “but no appropriation of money to that use shall be for a 
longer term than two years.” 

I call the attention of the committee to the difference in the lan¬ 
guage when you come to the militia sections. The militia may be 
used for certain specified purposes that I have already adverted to. 
The Congress may “ call forth ” the militia. The words “ draft ” and 
“ conscription ” do not appear; and the only conscription, in my 
judgment, recognized in the Constitution of the United States, 
authorized by it or that can legitimately rest upon it is conscription 
of the militia forces and for the purposes specified therein. 

Senator Fletcher. May I ask whether the question was raised at 
all when we raised our Army in 1898? 

Senator Hardwick. It was not; we had no draft then. This is the 
first time in the history of this country- 

Senator Fletcher. I know; but we had a Regular Army. 

Senator Hardwick. I understand; but they were under volunteer 
contract in the Regular Army. There has never been any trouble 
about the Regular Army being sent anywhere, if the President elected 
to do it, because the men make that contract and agreement. 

Senator Fletcher. Do you think volunteers may be sent to France 
but the drafted men may not be? 

Senator Hardwick. Undoubtedly. That is what I believe is the 
truth. 

The Senator from Oregon cites the decision of a district judge in 
Georgia. If a careful perusal of that opinion is either persuasive or 
convincing to the mind of the Senator, then he has much the advan¬ 
tage of me. It sounds to me more like a stump speech than anything 
else, and I sav that with all due respect to the courts- 

Senator Fletcher. You refer to the decision of Judge Speer. 

Senator Hardwick. Yes. I say it sounds to me more like a stump 
speech than anything else. At any rate, there was nothing in the 
reasoning in the opinion that was either convincing or pursuasive to 
my mind, nor in any one of the others I have seen. And the Senator 
must remember that the only particular matter to which Judge 
Speer’s attention was directed was that this law is unconstitutional 
because it violated the thirteenth amendment to the Constitution of 
the United States. I unhesitatingly say I do not believe it is un¬ 
constitutional for any such reason as that. I do not believe that 
military.service is slavery or involuntary servitude within the mean¬ 
ing of the thirteenth amendment. 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 7 

Senator Fletcher. But the Senator suggested that a man selected 
in the way provided by this law was in the category of a “ serf.” 

Senator Hardwick. Undoubtedly, they have been treated so, be¬ 
cause their fundamental rights as Americans and as Englishmen have 
been violated and flagrantly disregarded, in my opinion. But the 
thirteenth amendment, it must be recalled, was framed to abolish 
slavery, and the language used was “ Neither slavery nor involuntary 
servitude, except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United States or any 
place subject to their jurisdiction.” The words “involuntary servi¬ 
tude ” had reference only to a fear that existed in the minds of the 
men in Congress who wrote that amendment that the slaves of the 
Southern States might be virtually reenslaved by a system of debt 
devices, and the debates in Congress at that time prove it. So that 
I say, in my opinion, the thirteenth amendment has no relation to 
this question, and the opinion of all these judges as to whether or not 
this law is constitutional because it conflicts with that amendment 
is neither illuminating nor do those decisions prove anything impor¬ 
tant to the question really at issue. 

The Chairman. Let me ask you this, Senator: Assume, for the sake 
of illustration, that the United States had a war with Mexico, as in 
1845, and it was not a popular war, and men did not care to enlist, 
or would not enlist in the Regular Army—you could not draft them 
for service in Mexico, and men might even avoid draft by going into 
the National Guard of the several States—would we be entirely pre¬ 
vented in this way from sending an Army to Mexico for any pur¬ 
pose, even for the protection of our own country? 

Senator Hardwick. Mr. Chairman, you have raised a very inter¬ 
esting question. Our courts have held that even the militia can be 
sent outside the realm, directly across the boundary, when the object 
is to repel an attack that is about to be made by a force that is then 
forming, and where the danger of such invasion is pressing and 
imminent. 

The Chairman. How can you make a distinction between across 
the boundary line and across the sea if, as has been intimated in quite 
a number of instances, the Germans had really plotted to divide this 
country with the Mexicans and Japanese on the south, and, according 
to Gerard, they had before this war was declared by America, made 
arrangements, or had discussed, with England the propriety of vio¬ 
lating the Monroe doctrine? 

Senator Hardwick. The Senator is injecting a lot of extraneous 
things here. I am pointing out what the distinction is. Read the 
decision of the courts and you will readily see it. You can not send 
them 3,000 miles beyond the sea on any such pretext. If so, the 
Constitution is destroyed. If the doctrine of the chairman is sound, 
you can send them to the ends of the earth and back again—wherever 
you pleased. 

The Chairman. I think you could in a war like the one now in 
progress. 

Senator Hardwick. Then what do those decisions mean? Under 
the Constitution you can send the militia across the seas? 

The Chairman. Not the militia across the seas. 


8 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


Senator Hardwick. Those provisions in relation to the militia 
would be utterly destroyed if the Senator’s view rests on any sound 
logic. 

The Chairman. If the National Guard of the several States is 
called into the Federal service, then they become Federal troops. 

Senator Hardwick. The law written on that subject is not worth 
the paper it is written on in any court. 

The Chairman. Of course, that is merely your opinion. 

Senator Hardwick. I am giving you my opinion. 

The Chairman. And my opinion differs entirely from yours. 

Senator Hardwick. And I am just as strong in my opinion as mor¬ 
tal can be. You can not change the Constitution of the United States, 
add to or substract from it, by any statute; and the obligation that 
you make these men take, in transferring their commands from State 
to National service in no way alters or changes their constitutional 
obligations and rights. 

Senator Kirby. That is recognized largely, too, by requiring those 
who engaged in the Mexican trouble to reenlist and swear in again. 

Senator Hardwick. Of course, enlist and disband and enlist as 
Federal forces that are not militia. 

Senator Brady. Under his plan they would not have to reenlist? 

Senator Hardwick. No. 

Senator Brady. That is, they could stay in the service? 

Senator Hardwick. They take a double oath and are a part of the 
State militia and of the national forces at the same time, and yet 
I say to you that I have not the slightest doubt that any court in 
this country is bound to hold that that procedure is unconstitutional. 

Senaor Brady. Before you sit down I want to ask you a few 
questions. 

Senator Hardwick. Will you let me finish the main thread of my 
statement, unless it is right on this point? 

Senator Brady. I will be glad to wait. 

Senator Hardwick. I will be glad to have you do it then. 

When power was conferred on Congress to raise the Regular 
Army, money was only named as the instrumentality that might be 
employed to do so. When power was conferred on Congress to call 
the national militia to the defense of the country, the words “ equiva¬ 
lent to conscription and draft calling forth ” were used, entirely 
different language. 

Mr. Chairman and gentlemen, it is a part of the inherent constitu¬ 
tional rights of both Englishmen and Americans, as old as Anglo- 
Saxon civilization itself, that men shall not be required to render 
military service outside of the realm and across the seas, without 
their own consent. It was a law of Saxon England from King Al¬ 
fred's time; it was the law of Norman England in King Richard’s 
time and in King John’s time, and the sixteenth chapter of the 
Magna Charta expressly affirms it. 

From Stubb’s Constitutional History of England, volume 1, pa«*e 
547-548, I read [reading |: 

The history of the next year, 1198, furnishes two events of great importance. 
In a council of the barons held at Oxford the archbishop laid before them a 
demand made by the King that they should provide him a force for his war in 
Normandy; 800 knights were to be furnished, each to receive 8 English 
shillings every day and to serve for a year. There can be no doubt that 
the demand was unprecedented, whether we consider the greatness of the 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


9 


amount, £16,425, or the definitness of the proposition. But neither point 
caused the actual objection. The bishop of Lincoln, Hugh of Avalon, the 
Carthusian friend of Henry II, declared that he would not assent to the grant. 
In vain the archbishop, and the treasurer the bishop of London, pleaded the 
royal necessities; the independent prelate declared that the lands of his \ 
church were bound to render military service within England and there only; \ 
he had, he said, fought the battle of his church for 13 years; this impost he 
would not pay; rather than do so he would go back to his home in Burgundy. 
To the archbishop’s further discomfiture, the example of Hugh was followed 
by Bishop Herbert of Salisbury, who had had the regular ministerial training 
and was closely connected with the ruling officers of the exchequer. The oppo¬ 
sition was so far successful that the archbishop withdrew the proposal and 
shortly after resigned. This event is a landmark of constitutional history; 
for the second time a constitutional opposition to a royal demand for money 
is made, and made successfully. 

From the Chronicles of Jocelin of Brakeland (A. D. 1198), edited 
bv Sir Ernest Clarke (p. 128), I read [ reading] : 

King Richard commanded all the bishops and abbots of England that for every 
nine knights of their baronies they should make a tenth knight, and that with¬ 
out delay those knights should go to him in Normandy, with horses and arms, 
in aid against the King of France. Wherefore, it behoved the abbot to account 
to him for sending four knights. And when he had caused to be summoned all 
his knights, and had conferred with them thereon, they made answer that 
their fees, which they had holden of St. Edmund, were not liable to this charge, 
neither had they or their fathers ever gone out of England, although they had, 
on some occasions, paid escuage by the King’s writ. 

Now, I read next from one of the standard works—a very modern 
one, too—on this question, Farrer’s Military Manners and Customs, 
pages 264-265, where he discusses the constitutional doctrine and also 
the present situation. 

Senator Brady. That is interesting. I hope the Senator will fur¬ 
nish us with that information. 

Senator Hardwick (reading) : 

But it is evident that, except with a reservation limiting a man’s service to 
a just national cause, Bullinger’s argument will also apply to the case of a hired 
soldier of his own country. The duty of every man to defend his country in case 
of invasion is intelligible enough, end it is very important to notice that origi¬ 
nally in no country did the duty of military obedience mean more. In 1297 the/ 
high constable and marshal of England refused to muster the forces to serve \ 
Edward I in Flanders, on the plea that neither they nor their ancestors were \ 
obliged to serve the King outside his dominions, and Sir E. Coke’s ruling in 
Calvin’s case, that Englishmen are hound to attend the King in his wars as well 
without as within the realm, and that their allegiance is not local but indefinite, 
was not accepted by writers on the constitution of the country. The existing 
militia oath, which strictly limits obedience to the defense of the realm, covered 
the whole military duty of our ancestors, and it was only the innovation of the 
military contract that prepared the way for our modern idea of the soldier’s 
duty as unqualified and unlimited with regard to cause and place and time. The 
very word “soldier” means originally stipendiary, his pay. or “ solde ” (from 
the Latin solidum), coming to constitute his chief characteristic. From a ser¬ 
vant hired for a certain task for a certain time, the steps were easy to a servant 
whose hire bound him to any task and for the whole of his life. The existing 
military oath, which binds a recruit and practically compels him as much to at 
war of aggression as of defense at the bidding of the executive, owes its origin i 
to the revolution of 1689, when the refusal of Dumbarton’s famous Scotch regi¬ 
ment to serve their new master, William III, in the defense of Holland against 
France, rendered it advisatble to pass the mutiny act, containing a more strin¬ 
gent definition of military duty by an oath couched in extremely general terms. 
Such has been the effect of time in confirming this newer doctrine of the con¬ 
tract implied by the military status that the defense of the monarch “in person, 
crown, and dignity against 'all enemies,” to which the modern recruit pledges 
himself at his attestation, would be held to bind the soldier not to withhold his j 
services were he called upon to exercise them in the planet Mars itself. ' 


10 GOVERNMENT AND REGULATION OF MILITARY FORCES. 

Let me interpolate this is an involuntary contract of soldiers, it 
appears to me. 

Here is the conclusion of this. [Reading:] 

Hence it appears to be an iiulsputable fact of history that the modern mili¬ 
tary theory of Europe, which demands complete spiritual self-abandonment 
and unqualified obedience on the part of a soldier, is a distinct trespass outside 
the bounds of the original and, so to speak, constitutional idea of military duty; 
and that in our own country it is as much an encroachment on the rights of 
Englishmen as it is on the wider rights of man. 

Mr. Chairman and gentlemen, I have no doubt, as far as I am con¬ 
cerned, it is utterly contrary to the Constitution of the United States, 
that it utterly transcends the power of Congress, and that it utterly 
violates the immemorial principles of English and American liberty 
to require of any man that he shall render involuntary military 
service outside of the realm and beyond the seas. It was for that 
reason, entertaining those views earnestly and sincerely, that I was 
unwilling to vote for the original conscription act, and it is for that 
reason I offer this bill. I would go as far as any Senator on this 
committee or on any other committee, as anybody in this country, 
in the Senate or outside of it, to fight an American war that was 
nothing more than an American war. 

I hope that our country will adopt that policy and avoid the en¬ 
tangling alliances against which Washington warned. For an Amer¬ 
ican war and that alone we can get all the men we want to send to 
France to prosecute it without compelling anybody to go against 
his will, and instead of this country being at heart, in its inmost soul 
against this war, as it is now being prosecuted and urged, in my 
opinion, and against the policies that are being carried out in its 
prosecution; and instead of the existence of that tremendous under¬ 
current that everyone knows about in every one of our States on 
these subjects, I believe we would have had the united and devoted 
support of the entire American people, if we had observed the tradi¬ 
tions of English liberty, if we had said to these people, “All of you 
who will volunteer to engage in this just quarrel of your country.” 
If not, then it follows that either the war ought not to have been 
declared at all or that the American people are no longer fit to be a 
free and independent Nation, because if the war is a just one—and 
as I have said before, I think it was—then I do not see how anyone 
can say that the American people would not support it adequately, 
although people just as patriotic as any of us, Mr. Chairman, might 
not think that adequate support of it required that we send millions 
of men to Europe, either because we wanted to establish European 
boundary lines or European forms of government, or because of 
some weird, fantastic, grotesque and absurd fear that if we did not 
“ go after Germany in Germany ” Germany would go after us here. 

I say millions of honest men do not feel that either one of those 
things are true, and therefore do not feel we are bound to take 
Russia’s place if she falls down in this contest- 

Senator Brady (interposing). I fear Russia is going to fall down. 

Senator Hardwick. I hope the Senator is wrong. It means an 
awful thing for us if she does, because they do not think that it does 
not mean they are not as good Americans as anybody and just as 
patriotic. I think my own State is probably, with the exception of 
one State, and it-is about equal to that what might be termed, without 



GOVERNMENT AND REGULATION OF MILITARY FORCES. 11 

offense to other Commonwealths, the purest blooded American Com¬ 
monwealth of this Union, having about one-half of 1 per cent only of 
foreign-born citizens within its limits. Our people are of English, 
Scottish, and Irish ancestry; there are no Germans. I think there 
are less than 200 citizens of Georgia who were born in Germany or 
descended from people who were born in Germany. There is no 
pro-German sentiment there, but there is a tremendous sentiment 
there that it would have been just as well in waging this war to have 
paid some attention and to have had some regard for the ancient and 
immemorial rights of American citizens, and I think one of those 
righst is represented in this bill. 

The Chairman. Will the Senator allow me to interrupt him for a 
question ? 

Senator Hardwick. With pleasure. 

The Chairman. You speak of a German invasion of this country, 
or a German war with this country, if you please. Is it not true 
before war was declared by the American Congress that Germany had 
proposed to Mexico and to Japan through its authorized agents some 
division of American soil between the Mexican and Japanese Gov¬ 
ernments ? 

Senator Hardwick. The Senator from Georgia, Mr. Chairman, is, 
I think, as familiar with that correspondence and incident as anyone. 
I can not, of course, be put in the situation of being an apologist for 
Germany. I'do not feel that way, and I do not want what I am going 
to say to be understood that way, but I have always thought that the 
importance of that incident was grossly exaggerated. It is true some¬ 
thing authentic like that was discovered. But if this country was 
about to engage in a war with any nation I expect that if its secret 
archives could be searched and all its departments gone through with 
it might be found that we were making whatever plans our Govern¬ 
ment officials thought were wisest or necessary to combat that other 
power in the event we had to fight it. 

The Chairman. Why, Zimmerman admitted that he wrote that 
note to the German minister to Mexico. 

Senator Hardwick. Well, what is there unusual in that if he did? 
His defense was, as I remember it—although I am not in the position 
of being his apologist in any way—that that was merely an outline of 
what the German plan was in the event the United States made 
war upon Germany. That is my recollection of it. 

The Chairman. Ambassador Gerard, as is currently reported—I 
do not vouch for its truth—says the question was being discussed in 
Germany, before the war began, of having Great Britain unite with 
Germany in order that they might form an alliance to destroy the 
Monroe doctrine and practically take charge of Mexico and South 
America. 

Senator Kirby. I would like right there to ask a question. 

Senator Hardwick. Let me answer that, please. 

Senator Kirby. I would like to know what business an ambassador 
has of prostituting the public service to the making of a little money 
for himself by writing a book for sale and revealing State secrets, 
as an inducement thereto. 

The Chairman. I do not think that that was revealing * State 
secrets. 


12 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


Senator Kirby. I am not talking about that. I am talking about 
all this other stuff, information he acquired while he was in Germany 
in a diplomatic capacity, that is being published in the press here to 
appear in book form as of particular public intent for his own pri¬ 
vate benefit. 

Senator Hardwick. It is unbelievable 

Senator Kirby. That is a peculiar condition to me. 

Senator Hardwick (continuing). That Ambassador Gerard could 
have received, under those circumstances, as outlined by the chair¬ 
man, any genuine or official communication from official sources, about 
what they were plotting against this country. So that if he knows 
anything about or heard anything about it was probably mere gossip 
or rumor in that country, and I have no doubt any German could 
have found at that time, in the United States, plenty of people dis¬ 
cussing what we were going to do with Germany should we get 
into war with her, when the Lusitania was sunk or when Belgium’s 
neutrality was violated, and in many other subsequent situations. So, 
1 do not know that the Zimmerman correspondence amounts to a 
great deal- 

The Chairman. Suppose this bill of yours were to become a law. 
What would be the effect on the Army as organized now and what 
would be the effect upon the part we are taking and may be compelled 
later to take in the war? 

Senator Hardwick. I am very glad to tell the Senator. The effect 
would be that this large army that you are raising by draft would be 
kept in this country, trained and prepared to defend this country 
against these imaginary dangers that you gentlemen assert are so 
real, so that if it should turn out you are right about it and that those 
of us who think otherwise are wrong, we would have an army left in 
this country to use, if necessary, to defend our own country and our 
own soil. That would be the result of it, and we could send—we have 
something like 300,000 soldiers in the Regular Army, have we not ? 

The Chairman. I do not know just the number now. 

Senator Hardwick. That is substantially right, is it not? Some¬ 
thing like 500,000 in the Regular Army, whatever the figures are— 
I wanted to be corrected by the chairman if my statement was not 
substantially correct—we can send as big an army as we ought to 
send to Europe without a single drafted man being sent; and that 
is what I would like to see done- 

Senator Brady. Assuming that the bill under consideration should 
be passed, or that a majority of the committee and that a majority 
of the Senate at any time thought this bill should become a law, do 
you think it would be the proper thing to pass this bill at this time? 

Senator Hardwick. Undoubtedly, before they are sent, and not 
afterwards. 

Senator Brady. If it should have been enacted into law. should it 
not have been enacted before war was declared? 

Senator Hardwick. Jno; not a bit of it. I never had any idea in 
this world that any living, mortal American statesman who had any 
acquaintance with English or American constitutional law or the 
principles of English and American liberty would undertake to draft 
men to serve in France. And yet I was in favor of declaring the war. 

Senator Brady. What effect does the Senator think the passage of 
this bill would have on the present war? 



GOVERNMENT AND REGULATION OF MILITARY FORCES. 13 

Senator Hardwick. I will tell the Senator, I think we would be 
able to send an army of something like 500,000 or a million men 
without drafting, and that is as much of an army as we ought to 
send. 

Senator Brady. What would you do with the men who are over 
there now? 

Senator Hardwick. Over there now? 

Senator Brady. Yes. Send for them to come back? 

Senator Hardwick. I would send more to reinforce them. We 
only have a few thousand now. 

Senator Brady. I understand; but if this bill applies to the men 
in America it should apply to those now in France. 

Senator Hardwick (interposing). I just tried to point out to the 
Senator from Oregon that we had something like 300,000 Regulars 
and 400,000 or 500,000 Militia, most of whom, I think, would be per¬ 
fectly willing to go, and we could get, undoubtedly, many volun¬ 
teers, and I have no doubt we would be able to recruit by perfectly 
constitutional methods, that do not violate American traditions an 
army of 1,000,000 men for service abroad. 

Senator New. As to the effect this would have at this time, does 
not the Senator realize that r’ght now we are making up an organi¬ 
zation composed of men under this draft, part of whom would neces¬ 
sarily have to be taken out of those regiments if this bill were to 
pass, and we ought to stop to think of the confusion that would 
create. 

Senator Hardwick. I do not think that is a very great difficulty. 
The Senator means men drafted for service in the Regular Army, 
and to fill up the ranks of the Militia? 

Senator New. No. You would have to ask every man as he came 
up whether he was willing to go to France. That question would 
have to be addressed to every man who has now been drafted and the 
willing separated from the unwilling. 

Senator Hardwick. That is exactly what ought to be done. 

Senator New. And thereby lim’t just so much our effectiveness in 
the war. 

Senator Hardwick. What are those things in comparison with the 
fundamental and ancient rights of the American people about this 
thii g, if I am right on this proposition? What is the relative im¬ 
portance of a little work of readjustment, if what I am contending 
for is right? 

Senator Kirby. How^ long do you think this drafted army will be 
getting ready for service in France—at least a year? 

Senator Hardw t ick (continuing). They could make all those re- 
adj 1 stments in a reasonable time while the training is in progress. 

Senator New. I do not think it would be a year, but I think it 
would be removed to an indefinite period. 

Senator Brady. I would like very much to follow the line of 
thought I have suggested and ask a few questions of the Senator, 
for the reason I am perplexed as to just exactly what his purposes are. 

Senator Hardwick. I am afraid I can not make it plain to the 
Senator if I have not done so already. I will try, if the Senator will 
ind ; cate precisely what point he has in mind.. 

Senator Brady. I am trying to get down to a practical basis. Let 
us presume we passed this law at this time. 


14 GOVERNMENT AND REGULATION OF MILITARY FORCES. 

Senator Hardwick. Yes. . . 

Senator Brady. We have 1,000,000 men in the service at this time. 

Senator Hardwick. I doubt, Senator, whether there are that many. 

Senator Brady. We will put it in round numbers; 1,000,000 men, 
that is, the National Army. . 

Senator Hardwick. We have not organized as yet the National 
Army—the draft army. They are not yet in the military service of 
the United States. 

Senator Brady. Two hundred thousand of them passed examina¬ 
tion and 1,000,000 will soon be enrolled in the Army. 

Senator Hardwick. I know, but they are not now in the service. 

Senator Brady. Several hundred thousand have been accepted. 

Senator Hardwick. They are not a part of the military forces of 
the United States to-day; but that is neither here nor there. The 
facts can not be disputed. 

Senator Brady. What would be the situation if each and every one 
of those men were asked the question, “ Do you want to go to 
France ? ” 

Senator Hardwick. I might keep him in the service of the country 
even if we never sent him outside of this country. 

Senator Brady. You would give him the option of going abroad or 
serving at home? 

Senator Hardwick. I would not send any of them abroad, if you 
want to know what my idea is, whether wiliing or not. 

Senator Brady. At this time? 

Senator Hardwick. No; not at this time nor at any other time. 

Senator Brady. Do you think we can win this Avar by not sending 
our Army abroad? 

Senator Hardwick. I think we Avill just about as quickly as the 
other way. 

The Chairman. The Senator speaks of favoring the prosecution of 
this war within the lines laid down by him, but does not the Senator 
know that the People’s Council of America for Democracy in Times 
of Peace and the antimilitary, individually and as organizations, are 
appealing to the Senate committee to report the resolution of the 
Senator; that is, those who oppose the war, and are petitioning Sen¬ 
ators to support it? 

Senator Hardaahck. Mr. Chairman, the Senator from Georgia, of 
course, can not control either the views or the positions of citizens of 
this country who may elect for one reason or another to oppose or 
favor the bill he adA r ocates. 

The Chairman. I mention that to shoAv that those avIio oppose the 
war altogether favor the resolution because they feel it Avould accom¬ 
plish their purpose and possibly bring defeat. - 

Senator Hardavick. Undoubtedly; I can see why they favor it, 
because it does not mean participation in this war to the same 
extent that some of you gentlemen have in mind, and it means par¬ 
ticipation in this war on a very different plan and, I think, for an 
entirely different purpose than that you have in mind. 

The Chairman. Would it not mean, if your purpose was followed 
out, the nonparticipation of the United States in the present Euro¬ 
pean war? 

Senator Hardavick. Senator, when this war was declared 99 per 
cent—I won’t say that, but a great percentage, in my judgment, of 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 15 

the people in this country, a majority of them—believed it was to be 
largety a naval war. 

Senator Fletcher. Would not the Senator’s plan result in our 
having two armies, one draft and one voluntary? 

Senator Hardwick. Undoubtedly, although I would never have 
had a drafted army, as the Senator knows, as I voted against it. 

Senator Hitchcock. Of course, this Congress is not going to repeal 
the draft law? 

Senator Hardwick. I do not expect so. 

Senator Hitchcock. It is an issue in the House of Representatives. 
Suppose the people return Representatives the majority of which 
are strongly in favor of retaining the present policy. What would 
be your attitude then? 

Senator Hardwick. What would be my attitude? I would still be 
in the minority, as I am now; and it would be impossible for me to 
be here unless the people of my State approve that position. 

Senator Hitchcock. What would be the situation if the majority 
of the people of the United States indorsed the attitude of the 
administration. 

Senator Hardwick. There would be but one thing the Congress 
could do and that would be to carry out the instructions and the man¬ 
date received from the people; that is popular government. 

Senator Hitchcock. Is not that the proper way?’ 

Senator Hardwick. I think it will be settled that way; that is 
the forum in which it will be and must be settled, and its speedy 
settlement is at hand. 

Senator Fletcher. Does not the Senator believe that after we have 
declared war and a state of war exists and we are actually engaged 
in that war we ought to have due consideration for the people 
who have the responsibility of conducting the war, and if they say 
we ought to do this, that, and the other, aught we not respect their 
judgment? 

Senator Hardwick. Every public man will have to set up his own 
standard about matters of that sort. There are a great many people 
who say we ought to do this or that or the other because the President 
or somebody else, perhaps an Army officer, says so. 

Senator Fletcher. I am speaking about men who are charged 
with the high responsibility. 

Senator Hardwick. I am speaking about men charged with the 
duties that the Senator from Florida and myself are both charged 
with. 

Senator Fletcher. We are not Commander in Chief of the Army 
and Navy. 

Senator Hardwick. No; and I will say to the Senator what I 
said to the Senator on the floor of the Senate when this question 
was up, that I feel obligated as a patriotic citizen of America as well 
as a sworn Senator of the United States to follow the military 
authorities about all matters purely military. I would no more 
undertake to try to meddle with how a campaign should be waged 
or to plan a campaign than to attempt any other impossible thing. 
That is the business of the generals and admirals of the Army and 
the Navy. But when it comes to the matter of great civic policies— 
and this is a great civic question- 


16 GOVERNMENT AND REGULATION OF MILITARY FORCES. 

Senator Fletcher (interposing). Is not this merely a matter of 
conducting the campaign? 

Senator Hardwick. No ; the campaign is prosecuted by your Army 
after it is raised. Why, then, did the Constitution confer upon 
Congress instead of upon the War Department or the President 
the power to raise armies? This is, in fact, a great'civic and social 
question. 

Senator Fletcher. Would not the passing of a resolution of this 
kind practically result in the withdrawal of the United States 
from the war? 

Senator Hardwick. Certainly not. The Senator has just come in 
and did not hear my previous remarks. It would simply mean we 
did not propose to fight for some of these European causes of 
quarrel. It would mean that we propose to do in 1917 what we did 
in 1812. We fought a war in 1812, against whom? Against Great 
Britain, and at that time Great Britain’s antagonist was Napoleon, 
who might be said to be the prototype of the present Kaiser, and 
although we were in a war with Great Britain in 1812, and about 
our rights on the high seas, we did not then go to France and lay 
our hands in the hands of France, and say, “ We make your 
quarrel curs. We will prosecute this war as long as you want us 
to prosecute it, and we Avill shed our blood as long as you want us to 
shed it.” 

Senator Beckham. Does the Senator consider that the extent of 
the ocean then meant a much greater difference in warfare between 
this country and European countries than it means now ? 

Senator Hardwick. I do not think it makes a great difference. It 
is true steam and electricity and all the modern inventions have 
brought people closer together, but it has also made people better 
able to defend themselves. Let me say to the Senator from Ken¬ 
tucky if England, with the undisputed mastery of the sea, has been 
unable to invade Germany, 50 miles away, with her great navy, 
simply and solely because Germany has so mined her coast and 
has so fortified her coast that the English vessels would have been 
blown up before they got there, I have no doubt in my own mind 
that the coasts of this country can be so fortified that any foreign 
power can not invade this country or even attempt it. 

The Chairman. You stated a while ago if the diplomatic negotia¬ 
tions of this country had been properly carried on that in all human 
probability it would not have been necessary to declare war. Wherein 
might that have been done so as to avoid the question of war? 

Senator Hardwick. I think that is a fair question, although I 
would have preferred you did not ask it. 

In the beginning of'this war President Wilson issued a proclama¬ 
tion urging us to all remain strictly neutral, saying, “ TIPs quarrel 
is none of ours, and these people are all our friends.” He advised 
us against even speaking passionately about it, and the country re¬ 
sponded to his appeal. In fact, the* country a little later reelected 
him because “ He kept us out of war.” The first violation of our 
neutral rights was by the allies. Great Britain particularly. Great 
Prba^ declared the North Sea closed. Great Britain undertook to 
do a thing absolutely without parallel in the history of international 
intercourse between friendly powers. She undertook to say to the 
United States, although she was at peace with both the United 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 17 

States and Holland—we will use Holland for the purpose of illus¬ 
tration—“We will regulate by orders in council and by the actual 
force of our navy what merchandise you can send, how much com¬ 
merce you can have, and how much trade you can have with Holland 
or with Norway or Sweden or any one of these powers that are at 
peace with all of the belligerents and also at peace with the United 
States.” Her justification for doing that was that she could not 
stop these goods if they once got to Holland from getting into Ger¬ 
many from the other side. That was no justification at all in inter¬ 
national law. It was her business to stop it, and not ours. We had 
a right to trade as we pleased with Holland without Great Britain’s 
control or interference. 

I thought then, as I still think—the Senator must do me the credit 
to recall that I preferred not to go into that; it was past—it is 
thrashing out old straw\ If we had then forcefully said to Great 
Britain, and we did pretend to say it, in a very mildlike and lady¬ 
like manner, “ You haven’t any right to say what we shall sell to 
Holland,” nor to say, “We will control your trade by orders in 
council and by our navy.” We wopld not have had any war. All 
we would have had to say was, “ If you keep this up for 90 days, we 
will declare an embargo against you and the allies.” That would 
have forced them to terms. 

The Chairman. Do you not think the attitude of neutrality was 
maintained until Germany violated her promise to abstain from 
submarine warfare? 

Senator Hardwick. I do not, for the very reason, and in the very 
manner I have pointed out. 

Senator McKellar. Do you not think it would be not only a 
menace to our own liberties in this country but a menace to our 
country itself if we permitted Germany to win this war? 

Senator Hardwick. I take it that Germany is not going to win 

this war. Besides, they are not coming over here after us. You do 

not believe that ? 

Senator McKellar. I do not. 

Senator Hardwick. I do not, either. 

Senator McKellar. I believe if she wins this war under the cir¬ 
cumstances now, America will get the hot end of it before the war 
is over. 

Senator Hardwick. If you believe that sincerely, of course, you 
have a right to say it. I believe the opposite very sincerely. 

Mr. Chairman. Not only that, but even after we had failed to as¬ 
sert our neutral rights impartially against every belligerent who 
violated America’s neutral rights—and it ought to have done against 
them all—we would have had no trouble in enforcing those neutral 
right, even then, if we had passed resolutions to keep American citi¬ 
zens from riding on ships under belligerent registry which were en¬ 
gaged in the carriage of actual contraband of war, we would never 
have had this war. 

Senator Wadsworth. May I ask if that resolution would not have 
been surrendering neutral rights? 

Senator Hardwick. Let me set the Senator right. The Senator 
would have me say “which were engaged in the carriage of con¬ 
traband of war,” wdiereas I said “ actual contraband of war.” 

11932—17 - 2 


18 


GOVERNMENT AND REGULATION OF MILITARY FORCES. 


Senator Wadsworth. The Senator remembers that about every¬ 
thing eaten or worn bv man is now contraband. 

Senator Hardwick. I said “ actual contraband/’ There is a real 
distinction between actual contraband of war and general contra¬ 
band. Let me illustrate what I mean by that. Here are two men 
shooting at each other across this room. We are all on friendly terms 
with both of them. Say Representative Gordon and myself are 
engaged in such a combat. If either of you gentlemen, although 
not parties in any way when it began, undertook to bring either 
one of us a loaded pistol or cartridges, with which to carry on the 
affray, you might expect to be shot down because you would consti¬ 
tute yourself, not only in law but in the morals, a party to that com¬ 
bat when you did it. Undoubtedly there was some use of American 
citizens for selfish purposes along those lines, and I believe that 
giving even the slightest manifestation to the world that while we 
did not propose to surrender any real right, yet we did propose to 
have a lot of designing adventurers drag us into it and would have 
done a great deal to prevent it. But, as the Senator said, that is 
neither here nor there. We are into it: we did not do these things. 
Of course, the people may well'ask the question why that was not 
done and may well wonder how it all happened and why. 

The Chairman. Is there not this distinction between the attitude 
of Great Britain, is there not this difference, that even admitting 
that Great Britain was violating the rules of international law, yet 
in her violation of it there was no destruction of human life—men, 
women, and children? Germany promised us to desist from ruthless 
submarine warfare, even after the loss of the Lusitania , and yet 
later she violated those obligations, and in the meantime, during the 
existence of her promise, she was preparing and building submarines 
to violate it. 

Senator Hardwick. Undoubtedly. I have always felt and recog¬ 
nized that distinction myself. But I have never felt that because one 
man tried to murder me that ought to license another man to rob 
me. If we had resisted the robber, we would never have been robbed 
and no one would have tried to murder us. If we had stopped the 
first infractions of our neutral rights and of our sovereignty as a 
great people, and when thej^ first occurred, it is my opinion—and I 
expressed it candidly to you gentlemen—we would not have been 
up against this other situation at all. 

Mr. Chairman and-gentlemen, I thank you. 

Senator Frelinghuysen. I understand the point you make, the 
object of this bill is that under the thirteenth amendment the draft 
law is “ involuntary servitude ” ? 

Senator Hardwick. No, sir: I never dreamed of that. 

Senator Brady. He explained quite fully he did not take that view. 

The Chairman. If there is nothing further, the committee will 
now adjourn. 

(Thereupon the committee adjourned subject to the call of the 
chairman.) 









